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2004 DIGILAW 460 (RAJ)

Hukam Singh v. Bhikdan Charan

2004-03-25

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - The petitioner-defendant has filed the present writ petition under Article 226/227 of the Constitution of India on 7.2.2004 against the respondents with a prayer that by an appropriate writ, order or direction the order dated 16.1.2004 (Annex.10) passed by the learned Additional Dist. Judge (Fast Track), Pali whereby the learned Additional Dist. Judge while reviewing his earlier order dated 19.11.2003 (Annex.8) ordered that statement of respondent No. 1 plaintiff be recorded through affidavit be quashed and set aside and the evidence of the parties be taken in court and not through affidavit. 2. It arises in the following circumstances: (i) That the plaintiff-respondent No. 1 filed a suit (Annex.1) on 22.5.1998 for partition which is now pending in the court of Additional Dist. Judge (Fast Track), Pali (respondent No. 2). (ii) That the written statement (Annex.2) was filed by the petitioner-defendant on 26.3.99 and issues were framed on 13.2.2002 which were later on amended on 29.5.2003 and the case was fixed for recording the evidence of the plaintiff-respondent No. 1. A copy of order dated 29.5.2003 is marked as Annex.4. (iii) Further case of the petitioner is that the learned Additional Dist. Judge through order dated 18.8.2003 (Annex.5) changed the earlier order (which was for recording evidence of the parties in the Court) and ordered that evidence of the plaintiff-respondent No. 1 be recorded through affidavit. A copy of order dated 18.8.2003 is marked as Annex.5. (iv) Further case of the petitioner is that being aggrieved by the order dated 18.8.2003 (Annex.5) the petitioner-defendant challenged the same by filing revision petition which was dismissed by this Court through order 7.10.2003 (Annex.6) as not maintainable and thereafter the petitioner filed a writ petition No. 6702/2003 and this Court through order dated 2.12.2003 (Annex.7) stayed the operation of the order dated 18.8.2003. (v) Further case of the petitioner-defendant is that when the writ petition was pending before this Court, the learned Additional Dist. Judge through order dated 19.11.2003 (Annex.8) further ordered that evidence of the parties would be taken in the Court and thus, in other words the order dated 18.8.2003 (Annex.5) was reviewed. (vi) Further case of the petitioner is that when the order dated 19.11.2003 (Annex.8) was passed by the learned Additional Dist. Judge through order dated 19.11.2003 (Annex.8) further ordered that evidence of the parties would be taken in the Court and thus, in other words the order dated 18.8.2003 (Annex.5) was reviewed. (vi) Further case of the petitioner is that when the order dated 19.11.2003 (Annex.8) was passed by the learned Additional Dist. Judge (respondent No. 2) and by order dated 19.11.2003 (Annex.8) the order dated 18.8.2003 (Annex.5) did not remain in force and therefore, he got the writ petition dismissed as being infructuous through order dated 14.1.2004 (Annex.9). (vii) Further case of the petitioner is that the learned Additional Dist. Judge through order dated 16.1.2004 (Annex.10) again set aside its own order dated 19.11.2003 (Annex.8) and further ordered that the evidence would be taken through affidavit. Hence, this writ petition with the above mentioned prayer. 3. In this writ petition, the main submission of the learned counsel for the petitioner-defendant is that once the learned Additional Dist. Judge through order dated 19.11.2003 (Annex.8) came to the conclusion that the evidence would be taken in the Court and because of that reason, the petitioner-defendant got the writ petition dismissed as being infructuous through order dated 14.1.2004 (Annex.9), therefore, subsequent to that order dated 19.11.2003 (Annex.8) changing the mode of taking evidence is erroneous one and arbitrary and therefore, the order dated 16.1.2004 (Annex.10) is liable to be set aside. 4. The larned counsel for the respondent No. 1 has contested the writ petition without filing reply and his case is that in view of the law lid down by the Hon'ble Supreme Court in the case of Ameer Trading Corporation Ltd. v. Shapoodi Data Processing Ltd JT 2003(9) SC 109 ), the impugned order dated 16.1.2004 (Annex.11) passed by the learned Additional Dist. Judge (respondent No. 2) is within framework of law as provided under amended Order 18 Rule 4 CPC. Hence, no case is made out and the writ petition should be dismissed. 5. Heard and perused the record. 6. For convenience Rule 4 and 5 of Order 18 C.P.C. are quoted hereunder:- "4. Judge (respondent No. 2) is within framework of law as provided under amended Order 18 Rule 4 CPC. Hence, no case is made out and the writ petition should be dismissed. 5. Heard and perused the record. 6. For convenience Rule 4 and 5 of Order 18 C.P.C. are quoted hereunder:- "4. Recording of evidence:- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence: Provided that where documents are field and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. (2) The evidence (cross-examination and re- examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it : Provided that the Court may, while appointing a commission under 5 this sub-rule, consider taking into account such relevant factors as it thinks fit; (3) The court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner, he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit. (4) The Commissioner may record such remarks as he thinks 15 material respecting the demeanour of any witness while under examination: Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. (5) The report of the Commissioner shall be submitted to the Court appointing the Commission within sixty days from the date of issue of the Commission unless the Court for reasons to be recorded in writing extends the time. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule. (7) The Court may be general or special order fix the amount to be paid as remuneration for the services of the Commissioner. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule. (7) The Court may be general or special order fix the amount to be paid as remuneration for the services of the Commissioner. (8) The provisions of Rules 16, 16-A, 17 and 18 of Order 26, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule." "5. How evidence shall be taken in appealable cases-In cases in which an appeal is allowed, the evidence of each witness shall be- (a) taken down in language of the Court - (i) in writing by, or in the presence and under the personal direction and superintendence of the Judge, or (ii) from the dictation of the judge directly on a typewriter; or (b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge". 7. Before proceeding further it may be stated here that the Hon'ble Supreme Court in the case of Ameer Trading Corporation Ltd. (supra) has observed that Rule 4ORDER18 C.P.C. does not make any distinction between an appealable and non-appealable cases so far mode of recording evidence is concerned. 8. It may further be stated here that Rule 4ORDER18 was amended with effect from 1.7.2002 which provided that examination in chief in every case shall be on affidavit. 9. The Hon'ble Supreme Court in the case of Ameer Trading Corporation Ltd. (supra) further observed that Order 18 Rule 4 and 5 C.P.C. are required to be harmoniously construed. Both the provisions are required to be given effect to and Order 18 Rule 5 CPC cannot be read as an exception to Order 18 Rule 4 C.P.C. 10. So far as law laid down in the case of Ameer Trading Corporation (supra) is concerned, it is very much clear that after amendment, examination-in-chief should be taken on affidavit as provided under Rule 4ORDER18 CRC., but in the present case, the position is otherwise and since when the learned Additional Dist. Judge passed an Order on 18.8.2003 (Annex.5) that the evidence will be recorded through affidavit, the present petitioner defendant filed a writ petition No. 6702/2003 and during pendency of writ petition, the learned Additional Dist. Judge passed an Order on 18.8.2003 (Annex.5) that the evidence will be recorded through affidavit, the present petitioner defendant filed a writ petition No. 6702/2003 and during pendency of writ petition, the learned Additional Dist. Judge passed another order dated 19.11.2003 (Annex.8) by which the order dated 18.8.2003 (Annex.5) was reviewed and if was ordered that the evidence would be taken in the Court and in view of that reason, the petitioner-defendant got the writ petition dismissed as being infructuous through order dated 14.1.2004 (Annex.9). In this case, the learned Additional Dist. Judge through order dated 19.11.2003 (Annex.8) ordered that the evidence would be recorded in the Court and not on affidavit as ordered earlier through order dated 18.8.2003 (Annex.5) and that order dated 18.8.2003 (Annex.5) was under challenge before this Court and taking this special feature of the case, subsequent changing of order dated 19.11.2003 (Annex.8) through order dated 16.1.2004 (Annex.10) is neither proper nor justifiable and therefore, if after dismissal of writ petition as being infructuous through order dated 14.1.2004 (Annex.9) the learned Additional Dist. Judge again changed his earlier order dated 19.11.2003 (Annex.8) and therefore, a legal right has accrued in favour of the petitioner on the point that the evidence as ordered through order dated 19.11.2003 (Annex.8) should be taken in the Court and thus, the impugned order dated 16.1.2004 (Annex.10) cannot be sustained. and the law laid down in the case of F deer Trading Corporation (supra) would not be helpful to the learned counsel for the respondent No. 1. 11. For the reasons mentioned above, the order dated 16.1.2004 (Annex.10) passed by the learned Additional Dist. Judge (respondent No. 2) is liable to be set aside and this writ petition deserves to be allowed.Accordingly, the present writ petition is allowed and the order dated 16.1.2004 (Annex.10) passed by the learned Additional Dist. Judge (Fast Track), Pali (respondent No. 2) is quashed and set aside and the order dated 19.11.2003 (Annex.8) passed by the learned Additional Dist. Judge (Fast Track), Pali (respondent No. 2) is restored.Writ Petition allowed - Impugned order set aside. *******